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Keywords

statuteappealtrialmotioncompliancebench trial
attorneytrialmotionchild custodybench trial

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Epstiner v. Spears, 340 Ga.App. 199, 796 S.E.2d 919

Facts

Rebecca Boehmer Epstiner and Tyler Dean Spears are the parents of a minor child, L.B.S., born on December 10, 2010. In August 2013, Spears filed a Petition for Legitimation, Custody, and Child Support, leading to a bench trial on April 22, 2015, where the court issued an oral ruling granting Spears supervised visitation and later unsupervised visitation. However, the written order entered on April 29, 2015, did not accurately reflect the court's oral ruling, leading Spears to file a motion to amend the order, which the trial court granted.

The relevant facts are undisputed and show that Epstiner and Spears are the parents of a minor child, L. B. S., born on December 10, 2010. In August 2013, Spears filed a Petition for Legitimation, Custody and Child Support as to L. B. S. A bench trial on that petition was held on April 22, 2015, and at the conclusion of that trial the court issued an oral ruling as to Spears's custody and visitation rights.

Issue

Did the trial court have the authority to modify its original custody order, and did it properly incorporate a parenting plan as required by law?

Did the trial court have the authority to set aside its original judgment pursuant to OCGA § 9–11–60 (d) (2) because, given that his attorney approved the erroneous order, Spears was not without fault with respect to that order?

Rule

Under OCGA § 19–9–3 (b), a trial court may modify visitation rights without showing a change in material conditions, and OCGA § 19–9–1 (a) requires that custody orders incorporate a permanent parenting plan.

The relevant Code section applicable to child custody actions provides, in part: In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment…. OCGA § 19–9–3 (b).

Analysis

The court found that the original order did not accurately reflect its oral ruling and that the errors were not the fault of Spears. The trial court's decision to modify the visitation rights was supported by evidence, and it correctly applied the relevant statutes. However, the court acknowledged that the current order failed to incorporate a parenting plan as mandated by OCGA § 19–9–1 (a), necessitating a remand for compliance.

Here, the evidence showing that the original order of judgment did not accurately reflect the trial court's ruling was sufficient to support the trial court's decision to modify that judgment. Accordingly, we affirm the trial court's grant of Spears's motion to modify the original order of judgment entered on his Petition for Legitimation, Custody, and Child Support.

Conclusion

The Court of Appeals affirmed the trial court's decision to modify the custody order but vacated the order for not including a parenting plan, remanding the case for the trial court to enter a compliant order.

For the reasons set forth above, we affirm the trial court's grant of Spears's motion to modify the court's original order entered on his Petition for Legitimation, Custody and Child Support. We vacate the current order, however, and remand the case for entry of an order that complies with the requirements of OCGA § 19–9–1 (b).

Who won?

Tyler Dean Spears prevailed in the case as the court affirmed the modification of the custody order, finding that the original order did not reflect the court's ruling and that the modification was justified.

We find no merit in Epstiner's claim that the trial court erred in modifying the custody provisions of its previous order of judgment, and we therefore affirm the trial court's grant of Spears's motion.

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